ML20082J102
| ML20082J102 | |
| Person / Time | |
|---|---|
| Site: | Waterford  |
| Issue date: | 11/28/1983 |
| From: | Blake E LOUISIANA POWER & LIGHT CO., SHAW, PITTMAN, POTTS & TROWBRIDGE |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| References | |
| NUDOCS 8312010379 | |
| Download: ML20082J102 (9) | |
Text
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November 28, 1983 p
RC 5 MN30 Ali:23 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSIOhf[ F SECREgg.
Before the Atomic Safety and Licensing Appea bbbr In the Matter of
)'
)
LOUISIANA POWER & LIGHT COMPANY
) Docket No. 50-382
)
(Waterford Steam Electric Station,
)
Unit 3)
)
APPLICANT'S OPPOSITION TO JOINT INTERVENORS'
" MOTION TO REOPEN CONTENTION" 8/9 On November 8, 1983, Joint Intervenors filed with the Appeal Board a document entitled " MOTION TO REOPEN CONTENTION, November 7, 1983," which was addressed to Contention 8/9 (Joint Intervenors' " synergism" contention).-1/ As discussed below, the motion actually requests that the Appeal Board direct the Staff to perform a study and report the results to Joint Intervenors.
The Appeal Board lacks the power to grant the requested relief.
Moreover, the Appeal Board no longer has jurisdiction over the synergism issue.
Finally, Joint Intervenors' motion completely fails to meet the well-established legal standards applicable to motions to reopen.
For all these reasons, Joint Inter-venors' motion must be denied.
1/
On November 21, 1983, the Appeal Board granted the "NRC Staff's Motion For Additional Extension of Time" (November 18, 1983), extending to November 28, 1983, inter alia, the time for responses to Joint Intervenors' motion.
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- 5)hD 8312010379 831128 PDR ADOCK 05000382 O
PDR L
4
. I.
THE APPEAL BOARD LACKS THE POWER TO GRANT THE REQUESTED RELIEF Although Joint Intervenors have captioned their filing as a motion to reopen the record on Contention 8/9, they are not now seeking that relief.
Instead, Joint Intervenors "for the present time" request only that the NRC Staff conduct an investigation into the subject matter of a New Orleans newspaper article on a recent British television program reporting an unusually high incidence of cancer in children in the area around the Windscale facility in north-western England, and that the Staff "make a report to Intervenor cover-ing 1) whether the nuclear plant caused the disease and 2) whether similar conditions exist at Waterford 3."
Joint Intervenors further state that they are " reserving the right to ask later for a public hearing" (emphasis supplied).
The Appeal Board does not have the authority to grant Joint Intervenors' request for a study.
It is the Nuclear Regulatory Commission itself that is vested with the authority to administer the Atomic Energy Act.
The Licensing Boards and the Appeal Board are entities created and authorized by the Commission to preside over adjudicatory proceedings.
Licensing Boards and the Appeal Board "are delegates of the Commission and exercise only those powers which the Commission has given them."
Public Service Company of Indiana (Marble Hill Nuclear Generating Station, Units 1 and 2), ALAB-316, 3 N.R.C.
167, 170 (1976).
It is thus clear that the Appeal Board itself has no power to conduct the requested investigation.
"It is also clear that the Boards cannot direct the staff in performance
..f_
of their administrative functions."
Carolina Power and Light Company (Shearon Harris Nuclear Power Plant, Units 1, 2,
3 and 4), CLI-80-12, 11 N.R.C.
514, 516 (1980).
The Appeal Board therefore lacks the power to grant Joint Intervenors' motion requesting that the Appeal Board direct the Staff to conduct an investigation and report its findings to Joint Intervenors.
Accordingly, the motion must be denied.
II.
THE APPEAL BOARD LACKS JURISDICTION OVER CONTENTION 8/9 Joint Intervenors assert that the newspaper article on Windscale attached to their motion relates to their Contention 8/9 on " Synergism."
Accordingly, Joint Intervenors' requests for relief are framed with respect to Contention 8/9.
- However, the Appeal Board cannot grant the relief sought because it no longer has jurisdiction over the synergism issue.
The Licensing Board resolved Contention 8/9 (the synergism issue) in favor of Applicant in LBP-82-100, 16 N.R.C. 1550 (1982).
The Appeal Board affirmed that decision in ALAB-732, 17 N.R.C.
1076 (June 29,1983).
The Appeal Board's decision became final agency action on September 7, 1983.-2/ Once finality has attached to the resolution of an issue, the Appeal Board is without jurisdic-tion to reopen the record to allow for further consideration of the issue.
Public Service Company of Indiana (Marble Hill Nuclear Generating Station, Units 1 & 2), ALAB-530, 9 N.R.C. 261 (1979).
This result obtains even when the Appeal Board retains jurisdiction 2/
See September 14, 1983 Memorandum, Chilk to Board and Parties in the Waterford Proceeding, re: ALAB-732 (noting Commission 5-0 vote declining review of ALAB-732).
i
.f
-4 over other issues in the proceeding.
Public Service Company of New Hampshire (Seabrook Station Units 1 and 2), ALAB-513, 8 N.R.C.
~3/
694, 696 (1978); Marble Hill, supra.
Accordingly, because the synergism issue in this proceeding has been finally decided, the Appeal Board is without jurisdiction to grant Joint Intervenors' requests for relief with respect to that issue.
Joint Intervenors' motion must therefore be denied.
III.
THE MOTION FAILS TO MEET LEGAL STANDARDS APPLICABLE TO MOTIONS TO REOPEN Even if the Appeal Board retained jurisdiction over the synergism issue, the Board would still have to deny Joint Intervenors' motion (to the extent it is deemed a present request to reopen the record rather than, as it actually states, a request to order the Staff to undertake a study and report to Joint Intervenors),
because Joint Intervenors have completely failed to meet the established legal standards applicable to such motions.
"It is well settled that the proponent of a motion to i
reopen the record has a heavy burden to bear."
Duke Power Company (Catawba Nuclear Station, Units 1 and 2), ALAB-359, 4 N.R.C.
- 619, 620 (1976); Vermont Yankee Nuclear Pcwer Corporation (Vermont Yankee Nuclear Power Station), ALAB-138, 6 A.E.C. 520, 523 (1973).
Not only must the motion be timely presented, it must raise a significant safety or environmental issue.
Vermont Yankee, supra; Georgia Power Comoany (Alvin W. Vogtle Nuclear Plant, Units 1 and 2), ALAB-291, i
3/
In both Marble Hill and Seabrook, the Appeal Board held that It lacked jurisdiction to entertain motions to reopen issues that had been finally decided, even though in both cases the Board still retained jurisdiction over other, unrelated issues.
i l
ru
f.
2 N.R.C.
404, 409 (1975).
Beyond that, the motion must establish that "a different result would have been reached initially had the material submitted in support of the motion been considered."
Kansas Gas and Electric Company (Wolf Creek Generating Station, Unit No. 1), ALAB-462, 7 N.R.C.
320, 338 (1978).
Joint Intervenors' motion is totally deficient in light of these standards.
The only evidence Joint Intervenors advance to meet their " heavy burden" is the brief UPI item carried the New Orleans Times-Picayune /The States-Item on October 31, 1983.
That article reports an increased incidence of cancer in children who live near the Windscale facility in England, and also reports that fields around the plant are apparently contaminated with abnormal levels of radiation, and that " plutonium dust" has been found in area homes.
However, the article is utterly devoid of any facts establishing a link between whatever happened in England and the Waterford 3 plant.
Joint Intervenors admit as much when they ask the Staff to determine "whether similar conditions exist at Waterford 3."
Indeed, the Staff's " Final Environmental Statement" for Waterford 3, NUREG-0779 (September 1981), emphasizes the distinctions between the Windscale facility and Waterford 3:
A reactor accident in 1957 at Windscale, England, released a significant quantity of radiciodine, approximately 20,000 Ci, to the environment.
This reactor, which was not operated to generate electricity, used air rather than water to cool the uranium fuel.
During a special operation to heat the large amount of graphite in this reactor, the fuel overheated and radioiodine and noble gases were released directly to the JL
1 0 1
atmosphere from a 405-ft stack.
This kind of accident cannot occur in a water-cooled reactor like Waterford Unit 3, however.
NUREG-0779, at 5-47.
See also " Report to the United States Senate:
Nuclear Accident and Recovery at Three Mile Island,"
at 11 (prepared by the Subcommittee on Nuclear Regulation For The Committee On Environment and Public Works") (1980) (noting that the Windscale facility is a plutonium production reactor).
Certainly the newspaper article on which Joint Intervenors rely fails to establish that a "different result would have been reached" on the synergism issue had the article been considered earlier 4/
in the proceeding.~ The newspaper article -- the only evidence Joint Intervenors offer in support of their motion -- is, on its face not connected to the Waterford 3 plant, and is irrelevant to the synergism issue.
Nor have Joint Intervenors made any attempt to draw any such connection.
Under these circumstances, Joint Intervenors' motion must be denied.
Respectfully submitted, SHAW, PITTMAN, POTTS & TROWBRIDGE 18 (
, Q./
BYnest L.
Blake, Jr.v /j'g Delissa A. Ridgway Counsel for Applicant Dated: November 28, 1983 4/
Plutonium emissions from Waterford 3 and associated doses were addressed before the Licensing Board.
See Tr. 618-20, 625-39, 1285-86, 3723-24.
Joint Intervenors have failed to even attempt to relate the referenced newspaper article to the extensive evidence of record in this proceeding on radioactive emissions, attendant doses, and any associated health effects.
4 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Appeal Board In the Matter of
)
)
LOUISIANA POWER & LIGHT COMPANY
) Docket No. 50-382
)
(Waterford Steam Electric Station,
)
Unit 3)
)
CERTIFICATE OF SERVICE I hereby certify that copies of " Applicant's Opposition to Joint Intervenorr' " Motion to Reopen Contention" 8/9" were served this 28th day of November, 1983 by depesit in the U.S.
mail, first class, postage prepaid, to the parties on the attached Service List.
1l5 S w4 Del ~isia A.
Ridc]Way' ) U U'
DATED:
November 28, 1983
4 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Appeal Board In the Matter of
)
)
LOUISIANA POWER & LIGHT COMPANY
)
Docket No. 50-382
)
(Waterford Steam Electric
)
Station, Unit 3)
)
SERVICE LIST Christine N.
Kohl Sheldon J. Wolfe Administrative Judge Administrative Judge Chairman, Atomic Safety and Chairman, Atomic Safety and Licensing Appeal Board Licensing Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Washington, D.C.
20555 W.
Reed Johnson Harry Foreman Administrative Judge Administrative Judge Atomic Safety and Licensing Atomic Safety and Licensing Appeal Board Board U.S. Nuclear Regulatory Commission Director, Center for Population Washington, D.C.
20555 Studies
. Box 395, Mayo Howard A. Wilber University of Minnesota Administrative Judge Minneapolis, MN 55455 Atomic Safety and Licensing Appeal Board Wal ter H.
Jordan U.S. Nuclear Regulatory Commission Administrative Judge Washington, D.C.
20553 Atomic Safety and Licensing Board Sherwin E.
Turk, Esquire 881 West Outer Drive Office of the Executive Oak Ridge, TN 37830 Legal Director U.S. Nuclear Regulatory Commission Docketing & Service Section (3)
Washington, D.C.
20555 Office of the Secretary U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Washington, D.C.
20555 Appeal Board Panel U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Washington, D.C.
20555 Board Panel U.S. Nuclear Regulatory Commission Washington, D.C.
20555
r-a LP&L Service List-ASLAB Page Two Mr. Gary Groesch_
Luke B.
Fontana, Esquire 2257 Bayou Road 824 Esplanade Avenue New Orleans, LA 70119 New Orleans, LA 70116 Brian Cassidy, Esquire Spence W.
Perry, Esquire Federal Emergency Management Federal Emergency Management Agency Agency Region I Office of the General Counsel 422 J. W. McCormack 500 C Street, S.W.,
Room 840 Boston, MA 03109 Washington, D.C.
20472 Carole H.
Burstein, Esquire 445 Walnut Street New Orleans, LA 70118
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